Tippins and Wittman Revisited: Law,Social Science,and the Role of the Child Custody Expert 14 Years Later

It has been 14 years since Tippins and Wittmann ( 2005 ) voiced concern for the overreaching role the expert may play in matters of family law. This article sets their levels of inference within the context of the culture of both law and social science. We examine how inferences are impacted by the relative emphasis child custody experts give to the five stakeholders involved in child custody evaluations (CCEs): courts, lawyers, parents, children, and professional governing bodies. Acculturation of the assessor to law contributes to more egregious inferences, versus the more modest ones Tippins and Wittmann advocated. How evaluators prioritize stakeholders shapes their opinion and methodology. We offer an expanded perspective that views how their levels of inference are manifest in reports, methodology, and recommendations and the influence of the culture of law and the mindset of the clinician. We hope to encourage clinicians to find ways to operationalize clinical humility, assume their proper role, and remain true to their master identity as licensed mental health professionals and their proper sphere of authority.     

TO RECOMMEND OR NOT TO RECOMMEND: THAT IS NOT THE QUESTION

Tippins and Wittmann provide a cogent argument for custody evaluators not to make recommendations to the court. From their forensic and scientific perspectives, they have identified some important issues, which will certainly stimulate interesting discussion among custody evaluators. In response to their article, it is my view that public sector custody evaluations offer a philosophical and procedural alternative to forensic evaluations. This article proposes that recommendations should be viewed as part of the process of evaluations rather than the outcome. Based on a qualitative and interpretive model, recommendations are judged based on their applicability, transferability, and transparency. Recommendations viewed in qualitative terms provide parents with opportunities to step out of litigation and provide guidance for parents' ongoing roles postseparation.     

THE BENEFITS AND RISKS OF CHILD CUSTODY EVALUATORS MAKING RECOMMENDATIONS TO THE COURT:

In their article, Tippins and Wittmann articulate a strong position against custody evaluators making specific custody recommendations to the court. This response will focus on my thoughts about their concepts and my belief that recommendations can be useful and appropriate some of the time, even though there may be significant problems with certain types of recommendations and problems with some evaluators.     

ASSESSMENTS FOR POSTSEPARATION PARENTING DISPUTES IN CANADA

There is controversy in Canada about the use of assessments by mental health professionals to assist in the resolution of postseparation disputes between parents about their children. Although the principles developed by the Supreme Court of Canada to govern the admission of expert evidence in criminal law cases provides guidance for judges in family law cases, in deciding whether to order an assessment or admit expert evidence, family law judges must also take account of the child-related context. Mental health professionals can provide valuable information that would otherwise be unavailable when making prospective decisions about children. Court-appointed assessors also have a significant institutional role in the family law cases that has no equivalent in the criminal law context. Assessors are important not only for the relatively rare cases that go to trial, but they also play a central role in helping to resolve the much larger number of cases that are settled.     

A SECOND CALL FOR CLINICAL HUMILITY AND JUDICIAL VIGILANCE:

Offering commentary on "Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance," we express our agreement with Tippins and Wittmann. We opine that professional activity stimulates inquiry and it is through inquiry that our knowledge base will be expanded and our skills will be improved. In the interim, we should be mindful of our limitations, and actively articulate the ways in which the incompleteness of our knowledge base and the deficiencies of our assessment tools limit the confidence that can be placed in the recommendations that we offer.     

MAKING A PLACE AT THE TABLE:

This response to Timothy Tippins and Jeffrey Wittmann's article "Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance" builds upon the authors' conclusions that custody evaluations cannot and should not be a substitute for the socio-legal judgment of the best interests of the child. Recognizing that clinical humility and judicial vigilance may not be sufficient to restrain the misuse of psychological evaluation, we offer for consideration three structural changes that would provide for a more appropriate use of the skills and talents custody evaluators bring to legal decisions. We suggest using custody evaluators in the less adversarial setting of preparing parenting plans, revising the procedures by which custody evaluations are elicited in litigation, and adopting the approximation standard for child custody determinations.     

COMMENTARY ON TIPPINS AND WITTMANN'S "EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:

Although in substantial agreement with Tippins and Wittmann's analysis, their call for a moratorium on the practice of custody evaluators making recommendations to the court does not solve the many problems that they have raised, and may have unintended consequences which place families at even greater risk. This commentary reflects our agreement with some of the authors' major points of contention, focuses on several points of disagreement, and suggests alternative remedies for the shortcomings and ethical problems described in child custody evaluations.     

COMMENTARY ON "EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:"

Whether or not custody evaluators, testifying as expert witnesses, continue to make specific custody recommendations, custody decision making will continue to be based upon inadequate and untested evidence unless and until we reform the family court system in American courtrooms. Judges and lawyers must have specialized knowledge and training about such things as the developmental needs of children, the effects of divorce on children, domestic violence, and child safety issues; lawyers must develop litigation as well as mediation and negotiation skills; specialized family courts utilizing individual calendars and case management techniques must be established; and the complexities and intellectual challenges of family law cases needs to be recognized.     

To recommend or not recommend: That is still the question

The boundaries around what parenting plan evaluators should and should not say in their reports to Courts has been debated in both mental health and legal circles for decades. The controversy about whether parenting plan evaluators should make specific recommendations to Courts regarding access plans and decision-making rights revolves around varied views of the limits of mental health professionals' knowledge about such matters, whether they are socio-moral or psychological in nature, and the benefits to children and society of facilitating case-resolution. In the conversation presented below a seasoned family law attorney and a psychologist who is a frequent critic of the practice of making specific recommendations debate this area of controversy.     

THE CHALLENGES OF ECONOMIC PROOF IN A DECENTRALIZED AND PRIVATIZED EUROPEAN COMPETITION POLICY SYSTEM: LESSONS FROM THE AMERICAN EXPERIENCE

Since the announcement in late 2002 of the Modernization Plan,and continuing in 2005 with the release of the Green Paper ondamages actions, the European Commission has been committedto a significant restructuring of the EU's approach to enforcingcompetition laws. Under the revised system as envisioned bythe Commission, national competition authorities and privateparties will assume a far greater role in supplementing thework of the Commission, which for 50 years has been the predominantcompetition policy enforcer in Europe. The goal is not onlyto produce a system of shared enforcement authority, but topromote the continued evolution in Europe of a "culture of competition,"while avoiding the creation of a "culture of litigation." Ifnational competition authorities and private parties acceptthis invitation, however, they are likely to face the same kindsof demands for substantial economic evidence from their nationalcourts that the EC has faced from the Court of First Instanceand the European Court of Justice in some of its most complexand challenging recent cases. This paper asks whether nationallevel enforcers, public and private, will have the proceduraland evidentiary tools necessary to respond to demands for sucheconomic proof. Drawing on the Commission's recent experiences,as well as lessons from the U.S. experience, it asks whetherthe Green Paper's treatment of economic evidence is adequategiven the importance that economic proof plays today in competitionlaw cases. It then urges the Commission to devote additionalattention to identifying and advocating reforms that will moreactively facilitate the disclosure, development, and presentationof economic evidence. This paper particularly questions theGreen Paper's preference for the use of court-appointed expertsin lieu of party-secured expert witnesses. It argues that partyand court-appointed experts can perform very different functionsin competition law cases and should not be viewed as substitutes.Moreover, it suggests that the Green Paper may significantlyunderestimate the degree to which party-secured expert economicwitnesses will be necessary if national level enforcers—publicand private—are to be adequately equipped to meet theburdens of proof they will face. If national enforcers systematicallyfind that they lack the procedural tools necessary to developthe economic evidence they need to meet those burdens, theywill reduce or abandon their efforts to initiate competitionlaw actions and it will be less likely that the promise of decentralizationand privatization can be realized.     

外国法查明中的专家侵权责任研究

外国法专家因过错出具错误外国法意见并造成当事人损害的，应依照过错责任原则承担侵权责任。外国法查明错误造成的损害，既可以是财产性损害，也可能是非财产性损害如精神损害。只有当外国法专家对损失的发生有过错时才承担责任。专家应当赔偿的损害包括财产损害和非财产损害。出具外国法意见的专家，不得通过约定预先排除其过错责任。     

COMMENTARY ON “EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:” WHAT NOW?

Replying to the paper by Tippins and Wittmann, this commentary notes that the problems they identify have been recognized for many years, yet this has resulted in little change in the practice of child custody evaluations. Three underlying reasons are offered for the stalemate that frustrates the implementation of standards for an empirically based child custody evaluation practice: (a) the economics of child custody evaluation practice; (b) inconsistencies between proposals to restrict testimony in this area and the lack of similar restrictions in most other areas of forensic practice; and (c) inadequate motivation for researchers who might contribute an empirical base for child custody evaluations. Directions for breaking the stalemate are offered for each of these problems.     

Expert witnesses,nonexpert witnesses,and nonwitness experts

The role and responsibilities of the expert winness is a controversial subject. This article emphasizes the legal rules (of evidence and procedure) governing the expert and the policy grounds on which they rest. As the law's policies for the use of expertise shift from stage as stage as litigation progresses, or differ between categories of legal cases (criminal vs. civil), or with a party's use of an expert (from being a nonwitness consultant to an expert witness at trial), the law expects the role of the expert to be reshaped accordingly. On some important issues, the law sends contradictory messages: What its formal rules announce is at war with its structure and practices. And these, in turn, sometimes are in tension with the demands of the expert's professional ethical codes. On other matters of importance to experts, the law is silent, because the rules were motivated by a need to control the behavior of parties and lawyers, not experts. The result of all this is to present those who would be conscientious expert witnesses with a need to resolve nearly impossible role conflicts and ethical dilemmas.American Psychology-Law Society, delivered at the Annual Meeting of the American Psychological Association. New Orleans, August, 1989. That address was titled Expert Witnesses: Psychology and Beyond     

Training parenting plan evaluators: Looking towards the future

Standards of practice for parenting plan evaluations continue to evolve, informed by advances in research and the development of innovative, evidence-based approaches to assessment and intervention. Parenting plan evaluators are asked to inform the court, parents, and other professionals on how to address the complex needs of increasingly diverse families amid reorganization, high conflict, and crisis. How can we attract and properly train new mental health professionals to do important work in an increasingly strained adversarial system? How can evaluators keep up with these advances over the course of their careers? How can they deepen and refine their skills to work with a diverse array of individuals, family constellations and an enormous range of family circumstances? And how can evaluators care for their own well-being and their colleagues? In this article, the authors describe a multi-dimensional approach to training both new and experienced custody evaluators that includes imparting baseline knowledge on how to conduct quality parenting plan evaluations as a starting point. We discuss a variety of modalities and approaches that can enable evaluators to deepen and expand their skills over the years, contribute to the diverse community of family law professionals, and manage the exceptional demands of working in this field.     

英国专家证据可采性问题研究

现代科学技术的突飞猛进,使社会分工越来越细,专业化要求越来越高,在刑事诉讼中专家证据的作用也越来越明显.英美法系国家的专家证人制度起源于英国,经过几个世纪无数判例的积累和发展,有关专家证据的可采性问题已形成一整套相当具体、完备的规则,如专家资格规则、有用性规则,专业技术领域规则、普通知识规则以及终局性问题规则等.在现代刑事诉讼中,专家证据的重要性越来越明现,其在改革中的发展趋势,可以为我国亟待完善的司法鉴定制度提供一些有价值的借鉴作用.     

论子女最佳利益原则

子女最佳利益原则已发展成为各国家庭法在处理父母离婚后子女监护案件时的最高准则。虽然该原则其概念本身含有不确定性 ,具有多种可以不同明确表达的空间 ,但采用该原则的世界各国仍致力于列出若干决定子女最佳利益的具体准则。本文作者主张我国婚姻法应引进“子女最佳利益”原则作为处理子女监护问题时的最高指导原则 ,摒弃父母权利本位思想     

The admissibility and persuasiveness of expert evidence

Parenting plan evaluators are expert witnesses who offer their opinion. Courts in common law jurisdictions generally do not accept evidence of an opinion as it is not considered to be reliable evidence from which to establish a fact. An exception to that general principle is expert opinion evidence. In short, an opinion from a person with specialized knowledge or expertise about the area in which they are an expert may be sufficiently reliable to form an evidentiary basis from which to make a finding of fact, provided the opinion meets certain criteria. These criteria will be discussed in this article, as well as what is relevant, reliable and persuasive evidence. The relevant legal principles will be examined in an historical and contemporary, theoretical and practical context. The authors reflect on their considerable experience as consumers of expert evidence and apply this to parenting plan evaluations, as well as considering future challenges in the field.     

Expert Reliability in Legal Proceedings: “Eeny,Meeny, Miny,Moe, With Which Expert Should We Go?”

Between Expert Reliability refers to the extent to which different experts examining identical evidence make the same observations and reach the same conclusions. Some areas of expert decision making have been shown to entail questions with relatively low Between Expert Reliability, but the disagreement between experts is not always communicated to the legal actors forming decisions on the basis of the expert evidence. In this paper, we discuss the issues of Between Expert Reliability in legal proceedings, using forensic age estimations as a case study. Across national as well international jurisdictions, there is large variation in which experts are hired to conduct age estimations as well as the methods they use. Simultaneously, age estimations can be fully decisive for outcomes e.g. in asylum law and criminal law. Using datasets obtained from the Swedish legal context, we identify that radiologists and odontologists examining knees or teeth images to estimate age seem to disagree within their own disciplines (radiologist 1 v. radiologist 2 or odontologist 1 v. odontologist 2) as well as across different disciplines (radiologist v. odontologist) relatively often. This may have large implications e.g. in cases where only one expert from the respective field is involved. The paper discusses appropriate ways for legal actors to deal with the possibility of lacking Between Expert Reliability. This is indeed a challenging task provided that legal actors are legal experts but not necessarily scientific experts.     

《正当防卫指导意见》中的程序问题评析

《正当防卫指导意见》中关于程序问题的若干规范对于正确办理涉正当防卫案件意义重大。侦查机关在取证工作中,应当着重注意对于能够证明不法侵害行为存在证据的及时收集。公检法机关在依法公正处理涉正当防卫案件时,尤其应当认真听取辩护方意见,及时披露案件信息,回应社会关切。对属于正当防卫的案件应当及时作出不予追究决定。但对于防卫过当案件均应适用认罪认罚从宽制度的要求似乎不妥。对于陪审制的运用应扬长避短。在案件办理的不同环节均应注意释法析理,尤其应当注意在认定为正当防卫的案件中对被害人及其家属进行释法析理。在做好法治宣传教育工作中,既要教育公民自觉遵守法律,更要教育公民敢于拿起法律的武器,积极行使防卫权利。     

SKEPTICISM BORDERING ON DISTRUST: FAMILY LAW IN THE HOLLYWOOD CINEMA

This article critiques Hollywood films from the last last 20–30 years that relate to family law. More specifically, this article considers films involving marriage, divorce, child custody, and adoption and focuses on the portrayal of law in those films. While the films are not tightly connected to one another and surely do not share a unified theme, the films do share a surprising skepticism bordering on distrust regarding law, legal procedures, and legal institutions. Hollywood appears to have picked up a general sentiment that family should be a private, intimate sanctuary and is better off without state intrusion through law. The films incorporate this sentiment and also reinforce it by teaching viewers to be leery of law in family matters. Key Points for the Family Court Community:

• 1 Recent Hollywood films include not only abundant portrayals of family life but also numerous examples of family law.
• 2 As a result, these Hollywood films have the potential to educate viewers about family law and to prompt certain normative attitudes about family law.
• 3 In general, Hollywood films invite viewers to be skeptical and even disdainful of family law.